Can I Put Graphics In My S-1? Going Public Lawyers

A common question we receive as going public lawyers is what graphics can be used in the issuer’s Form S-1 registration statement. Last week the Securities and Exchange Commission (“SEC”) addressed the use of graphics and/or images that are non-searchable in SEC reports and filings in Compliance & Disclosure Interpretation (C&D) 118.01 of Regulation S-T. The C&D provides that “a filer may present required information using graphics that are not text-searchable and still comply with Rule 304(e) if the filer also presents the same information as searchable text or in a searchable table within the filing.”

The SEC noted in the C&D that issuers may present information in Commission filings in formats such as bar graphs or other graphics that are not text-searchable but that they believe may be more useful to readers than tables or paragraphs that present the same information in searchable form. The SEC welcomes use of graphic and image files to make information more accessible for users, provided that the filing complies with applicable EDGAR size and formatting requirements and the filer’s use of graphics does not interfere with a user’s ability to search required information.

Issuers should consult with their securities and/or going public lawyer about compliance with EDGAR size and formatting requirements to ensure that they meet SEC requirements.

The SEC’s C&D is below.

Question: May a Commission filing contain graphics (such as .gif or .jpeg image files) that include information that is not text-searchable?

Answer: Rule 304(e) of Regulation S-T specifies that “filers may not present in a graphic or image file information such as text or tables that users must be able to search and/or download into spreadsheet form (e.g., financial statements); filers must present such material as text in an ASCII document or as text or an HTML table in an HTML document.” In our view, “information such as text or tables that users must be able to search and/or download” consists of all information that the filer is required to include in the particular filing, such as disclosures in response to applicable form and Regulation S-K items and any additional information required to be included under Securities Act Rule 408 or Exchange Act Rule 12b-20.

This securities law blog post is provided as a general informational service to clients and friends of Brenda Hamilton and Hamilton & Associates Law Group and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.